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January 23, 2014

How will Texas sentencing jury exercise its broad discretion after NFL player's intoxication manslaughter conviction

As reported in this lengthy local article, the conviction of a high-profile defendant in Texas state court now presents an interesting new case study in jury sentencing discretion.  Here are the detais:

Former Dallas Cowboy Josh Brent faces up to 20 years in prison after a Dallas County jury Wednesday found him guilty of intoxication manslaughter for a 2012 wreck that killed his best friend and teammate.

The verdict followed six days of testimony and arguments and approximately nine total hours of jury deliberations about whether Brent was actually drunk while driving in a Dec. 8, 2012, rollover wreck that killed 25-year-old Jerry Brown Jr., a Cowboys practice squad linebacker.  The jury will now have to determine how much time — if any — Brent will spend behind bars for the felony conviction.

Brent — who served 30 days in an Illinois jail in 2009 after being arrested for driving drunk on an expired license and speeding — is eligible for probation. The punishment phase of Brent’s trial is set to begin Thursday.... The judge sent the jurors home Wednesday evening after they had been sequestered in hotel rooms Tuesday night. But they are still not allowed to talk to anyone about the case or take in media accounts until after the sentencing....

Brent was originally arrested after the early morning single-car crash on a State Highway 114 frontage road in Irving.  He was driving at least 110 mph on a 45-mph stretch of road when his car hit a curb and spun out of control, according to court testimony. Neither Brent nor Brown wore their seat belts. An investigator testified during the trial that Brown’s body helped cushion Brent from more serious blows during the crash.

Tests showed Brent’s blood alcohol content after the wreck was 0.18 percent, which is more than twice the legal limit for driving of 0.08. A toxicologist testified that Brent, who weighs 320 pounds, would have had to drink 17 standard alcoholic drinks to reach that level.

Brent’s attorneys — George Milner III, Kevin Brooks and Deandra Grant — acknowledged that he was speeding, but tried to cast doubt on whether the ex-player was drunk at the time. “There is no proof in the record as to why he drove fast … He drove fast when he had nothing to drink,” Milner said in closing arguments.

January 23, 2014 at 01:06 AM | Permalink


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The lawyers here have never answered this question, about a novel defense argument. Say a natural consequence of a crime is extremely punitive. An arsonist is burned, and spends an agonizing year on a burn unit. A bank robber is shot in a bone. A rapist has his genitals mutilated in self defense by the victim.

Can he ask for a discount in sentencing, having paid an extremely heavy price? Or is it so, that the CCE must get its rent in lengthy sentencing?

Posted by: Supremacy Claus | Jan 23, 2014 7:24:09 AM

Even if incapacitation is the sole mature purpose of the criminal law, one must still carry out an analysis of the extent of incapacitation caused by the about the injury suffered during the crime.

Posted by: Supremacy Claus | Jan 23, 2014 7:26:44 AM

It is very difficult for me to understand why a sentence of imprisonment for a substantial amount of time would be appropriate here. There is a fundamental illogic in punishing based on outcomes more than mens rea. What would suggest that someone like this needs to be in prison for a long time, any more than someone who has more than one drunk driving conviction but hasn't killed or injure anyone? (And drunk driving, in and of itself, merits significant punishment, but few think anything like 20 years in prison.)

Incapacitation: Brent is not dangerous than other drunk driving recidivists, who don't generally go to jail, at least for long. Restitution: civil remedies are available and a long period of imprisonment is not bringing back the victim. And if its only to make the victim's family feel better, that strikes me as a form of vengeance that is a weak basis on which to premise long prison terms (more sophisticated and well-educated victim's families generally appreciate this point more than other sorts of victim's families). General deterance: doesn't the threat of the ususally punishment for drunk driving contribute to the deterance more than the remote possibility of a long prison sentence if someone dies? Retribution: Brent acted no worse than other recidivist drunk drivers, and it doesn't make a lot of sense to tag him with a long prision sentence based only on outcome. Between Brent and the victim's family, Brent should, of course, bear the loss for the extreme outcome, but that is the role of the civil system.

At bottom, not a lot of logical arguments for a long prison sentence. Let's hope the jury has some analytical thinkers, and does not rely on overly-emotional nonsense.

Posted by: Liberty Lawer | Jan 23, 2014 10:10:49 AM

Liberty Lawer ,

How about simply to protect the rest of us, since he is obviously uncaring about the results of his actions? Especially given the rest of what came out at trial (such as his trying to claim that TX DUI law didn't apply to him since he didn't have a TX drivers license). Even without the death involved I would be more than satisfied applying my standard felony punishment to this offender.

Posted by: Soronel Haetir | Jan 23, 2014 3:50:33 PM

A recidivist drunk-driver speeding without a license crashes at 110 mph killing his passenger and Liberty Lawyer sees no aggravating circumstances and worries about a sentence that is subject to "overly-emotional nonsense." Wow!

Posted by: mjs | Jan 23, 2014 4:53:55 PM

I'm not optimistic this jury will impose an appropriate sentence. They took 9 hours to render a decision in an open and shut case and one of the jurors was crying when the verdict was read.

Posted by: mjs | Jan 23, 2014 5:07:01 PM


The point is not that Brant did not do something bad and is deserving of non-trivial punishment. It is that punishment based on outcome does not make a lot of rational sense. There is near consensus that this country needs to cut way back on its prison population, and cases like this are one good place to start. He has already suffered much more punishment than a typical drunk driver by having to face the civil consequences of his actions and have this weighing on him for the rest of his life. One problem with our criminal justice system is that clear thinking gets subverted in favor of populist pandering to the unsophisticated.

Posted by: Liberty Lawyer | Jan 23, 2014 7:22:20 PM


The outcome of a criminal act-particularly when a death results- makes all the difference. Hasn't this theory been codified in Felony Murder statutes? Punishment is routinely based on the harm caused by the criminal act. A theft of $100,000 is punished more severely than a theft of $100. Why should a drunk driving case involving a mortality not be punished more than one without accident or other harm?

This is first and foremost a criminal act that requires sanction from the criminal justice system in the first instance.

Posted by: mjs | Jan 23, 2014 9:00:20 PM

Liberty Lawyer--

Of course punishment based on outcome makes sense. Put felony murder rules aside. If child abuser A beats the crap out of a child, and child abuser B does the same thing except the child dies, are you really saying that A and B should receive the same sentences simply because B didn't intend to kill the child?

I don't think it's "populist pandering to the unsophisticated" to suggest that a dead body should mean something in our sentencing scheme. But then again, I am rarely accused of being a sophisticated criminal legalist.

Posted by: Res ipsa | Jan 24, 2014 12:49:18 PM

A theft of $100,000 is punished more severely than a theft of $100. Why should a drunk driving case involving a mortality not be punished more than one without accident or other harm?

That is hilarious. Jamie Dimon's make a cool 20 million per. This of course is his punishment.

Posted by: Matt | Jan 24, 2014 3:54:10 PM

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